Where Party A obtains permission by filing an application for a building permit with respect to the construction of a building on both his/her own land, Party A and Party B’s co-owned land, whether Party A may be deemed to have affixed a written consent for use with consent from Party B at the time of applying for a building permit (affirmative with qualification)

In general, in constructing a building on another person's land or co-owned land owned by another person, not owned by the owner of the building, it is obvious in light of the empirical rule that the building permit may be granted only by attaching a written consent for the use of the land under another person's name at the time of application for the building permit. Therefore, if Gap applied for the building permit to construct the building on both his own land, Gap and Eul's co-owned land and obtains the permit, barring special circumstances, Gap cannot be deemed to have approved the use of the above co-owned land from Eul as at the time of application for the

Article 187 of the Civil Procedure Act

[Judgment of the court below]

Defendant (Attorney Jeon Byung-hoon, Counsel for the defendant-appellant)

Suwon District Court Decision 92Na609 delivered on September 22, 1992

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below determined that the defendant owned part of the land in question on the part of the land in question and possessed the land in question on the part of the land in question. The defendant's defense that he obtained the consent of the plaintiff to use the land in question at the time when he constructed the building in question. The defendant's testimony of the non-party 1 and non-party 2, the non-party 2, the non-party 2, the non-party 2, the evidence Nos. 2 and 3 (the evidence Nos. 4-21, No. 4-28, and No. 12-1 to 14, and the non-party 2, the non-party 3, the non-party 2, the non-party 1, the non-party 2, the non-party 1, the non-party 2, the non-party 1, the non-party 2, the non-party 1, the non-party 1, and the non-party 1, the non-party 1, the building in question of this case was not known.

However, in light of the evidence Nos. 12-1 through 12 (Building Permit and Design Map) of this case, this is the building permit and its design drawing for the building of this case. According to this, the defendant applied for a building permit to construct the building on both the above ground of the land ( Address 3 omitted), which is the land owned by him and the land ( Address 4 omitted), which is the land prior to the partition of the land owned by him and the original and the defendant. In general, in constructing the building on the land owned by others and the co-owned land owned by others not owned by the owner, it is obvious in light of the empirical rule that the building permit may be granted only when a written consent for the use of the land owned by others is attached to the land owned by him and the original and the defendant's co-owned land. Thus, if the defendant applied for a building permit to construct the building on both the land owned by him and the original and the defendant's co-owned land, barring special circumstances, it is difficult for the defendant to obtain the consent from the plaintiff at the time of the application for the building permit.

In addition, according to the evidence No. 2 (written confirmation of facts), it is written by the plaintiff and the defendant. According to this, since the building of this case owned by the defendant and the building owned by the plaintiff and the non-party No. 3, which was the former husband, were constructed by adjusting the boundary under mutual agreement between the above non-party No. 3 and the defendant at the time when the building was constructed together with the building of this case and the building building owned by the defendant, the change of the plaintiff's location of the building of this case and the building of the non-party No. 3 was made, and at the same time the location of the building of this case and the building of the non-party No. 3 were changed. The evidence No. 3 (the same as the preparatory document and evidence No. 4-21) was written to confirm that the location of the building of this case was changed between the plaintiff and the non-party No. 3 at the time when the building of this case was constructed, it is difficult to find out the credibility of the building of this case as well as the present contents of the building.

In addition, according to the testimony at the first instance court of Nonparty 1 and the testimony at the second instance court of Nonparty 2, who rejected the lower court, the Defendant applied for a building permit with a written consent to use the site in the name of the Plaintiff at the time of the construction of the instant building, and the above testimony is not doubtful in light of the above circumstances.

Thus, if the defendant obtained the consent from the plaintiff at the time of construction of the building of this case to use the land in this case, the plaintiff cannot seek the removal of the part in dispute among the buildings of this case and the delivery of the land in dispute.

The court below should have reviewed whether the plaintiff accepted the use of the land in the dispute of this case to the defendant at the time of the construction of the building in this case in consideration of the above points, but without doing so, the court below failed to exhaust all necessary deliberations, and determined the selection of evidence and the judgment of value as stated in its reasoning, and the judgment of value is an illegal act. The grounds for this point are the same.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.